HOW THE BIG FIVE AND OTHER LEAGUES FACE THE BIG FIGHT AGAINST COVID-19
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RIVISTA DI ISSN 1825-6678
DIRITTO ED ECONOMIA DELLO SPORT Vol. XVI, Fasc. 1, 2020
Editoriale RDES 1/2020
HOW THE BIG FIVE AND OTHER LEAGUES FACE THE BIG
FIGHT AGAINST COVID-19
A comparative analysis of measures to combat the effects of COVID-19
on the football industry
by Michele Colucci,* Durante Rapacciuolo,** Rustam Sethna***
Introduction
On 7 April 2020, FIFA enforced with immediate effect, certain guidelines to mitigate
the impact of COVID-19 on the football industry and to ensure as far as possible,
harmony in measures taken by member associations.1 These guidelines were
formulated after a consultation with members from the FIFA administration, the
six confederations, member associations, the European Club Association, FIFPro
(the world player’s union) and the World Leagues Forum.
However, as highlighted by FIFA, the guidelines remain subject to the
domestic laws of each of its 211 member associations. Therefore, while the global
football community is certainly united in its effort to minimize the impact of the
pandemic on it, the measures adopted by each of them are bound to differ,
considering the circumstances and laws prevalent in each jurisdiction.
This prompted the Sports Law and Policy Centre to undertake a survey,
jointly with LawInSport, which sought to review recent developments, highlight
best practices, and offer solutions to face the crisis, while above all providing
readers and the wider sporting community with the opportunity to “rethink football”
____________________
*
EU Civil Servant and Member of the FIFA Dispute Resolution Chamber.
**
Editor in Chief of the Rivista di Diritto ed Economia dello Sport (www.rdes.it).
***
Future Associate (Sport) at Mills & Reeve, UK.
1
The FIFA COVID-19 FOOTBALL REGULATORY ISSUES – V 1.0 (April 2020) are available
at https://img.fifa.com/image/upload/zyqtt4bxgupp6pshcrtg.pdf.10 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
and make it more sustainable. The survey (updated to 5 May 2020) is freely
available and accessible at www.slpc.eu.
To provide a snapshot, an overview of the measures taken by the ‘Big
Five’ European Leagues and those in 20 other jurisdictions has been set out below
(section I and II respectively).
I. THE ‘BIG FIVE’ EUROPEAN LEAGUES
(England, France, Germany, Italy and Spain)
1. Where do we stand at the moment?
At the time of writing, the championships in four of the top five leagues in Europe,
have been suspended with effect from mid-March 2020.
Remarkably, on 28 April 2020, contrary to the recommendations issued
by the relevant association of sports doctors, the Government in France imposed
a ban on all sports events, even if conducted behind closed doors, until September
2020. Relevant professional leagues will therefore be obliged to pass a decision
accordingly, while amateur championships had been stopped on a permanent basis.
The Professional Football League expectedly declared an end to their professional
championships on 30 April 2020, with PSG awarded the title based on matches
completed thus far. Legal action by clubs that were relegated and missed out on
European competition places as a result of the early termination of the season, has
been threatened.
With France being the first of the ‘big 5’ European leagues to take this
measure, it remains to be seen whether this move will have a negative knock-on
effect on other countries and football competitions.
In England, the championships of all professional football leagues are
presently suspended but the FA hopes to resume the Premier League in the
beginning of June. The FA has taken the decision to cancel all the seasons for the
leagues below the National League (i.e. 8th division and below) and expunge the
results (i.e. it will be as if the season never happened). In the meantime, most
professional players will be on personal training programs given to them by
their clubs.
In Germany, all football championships at professional and amateur were
originally suspended.
Team training on club grounds was interrupted for about 2-3 weeks and
players underwent individual, technically monitored training plans at home. Slowly
and within the boundaries set by the respective health authorities, professional
clubs started team training on club grounds again, mostly in small groups up to
4-7 players.
Nevertheless, with Germany ahead of the curve and winning the battle
against coronavirus, on 7 May 2020 Chancellor Angela Merkel provided the greenEditoriale RDES 1/2020 11
light for the restart of fixtures taking place behind closed doors amid a ban of mass
gatherings in Germany until at least 31 August.
The government has stated that the Bundesliga and second-tier 2 could
re-start in the second half of May adding that the German football league (DFL)
would decide on the exact dates. The DFL have recently confirmed that games
will resume on 16 May 2020.
As far as amateur teams are concerned, team training is still suspended.
While there is a possibility that amateur leagues will be cancelled, nothing has
been decided at the time of writing.
On 26 April 2020, in Italy, the government authorized Serie A football
clubs to return to individual training on 4 of May and team training on
18 May 2020.
This means that the Serie A could potentially resume playing games in
June, though the Italian Prime Minister stated that a decision will not be made until
a later date, having taken into account the protocol issued by the FIGC Medical
Committee, whilst the Italian Association of Sports Doctors has made clear its
negative opinion on restarting competition.
The Italian Football Association has stated that it would defer the formal
end of the season from 30 June 2020 to 2 August 2020 to allow time for remaining
games to be played.
In Spain, the Government has declared a state of emergency, leading to
the confinement in mid-March. However, even before that, the Spanish Football
Federation took the decision to suspend certain matches. All professional football
competitions are currently suspended. With respect to training, clubs have, as a
general rule, suspended their activities. In fact, when Real Sociedad announced
the return of their team to collective training, they were warned by the Sports
Supreme Council not to do so.
2. National government measures to tackle the crisis and their
application to sport
In general, all governments have adopted specific, urgent, and even extraordinary
measures to tackle the economic crisis and its impact on work.
In England (and more in general in the UK) the Government introduced
a ‘Job Retention Scheme’ (the “Scheme”) for all employees, under which a
company can ‘furlough’ employees and apply for a grant from the Government
that covers 80% of their usual monthly wage costs, up to a maximum of £2,500 a
month. Football clubs are entitled to apply for the scheme. Employers are entitled
to ‘top up’ the furloughed salary to 100% if they wish.
While the players do not cease to be employees of football clubs if/while
they are furloughed, they are not permitted to carry out any “work”, in any capacity
for their employer. This would include participating in club organized, group training
sessions at respective training grounds. However, as players are currently at home12 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
and unable to play football in any event, in practical terms there is no difference
for the players. Training at home is permitted while on furlough.
Clubs have made individual decisions on whether to furlough players
and if so, whether to ‘top up’ furloughed players’ salaries to 100%.
In France, the Government has facilitated the use of a partial
unemployment scheme and it has even extended this to professional football. In
practice, the club would compensate its players (and more generally all its
employees, including non-playing staff) at 70% of their gross remuneration
(approximately 84% net). Then the State reimburses the Club, up to a limit of
4,850 euros per employee.
Nevertheless, by putting players on a partial unemployment scheme, clubs
are able to make considerable savings, financially. In fact, the compensation paid
to the players is not subject to deductions for social charges.
Finally, the French government has also set up a bank loan guarantee
mechanism for all companies. Clubs are therefore able to negotiate and avail
state-guaranteed loans with their respective banks.
In Germany, under certain circumstances, employers can invoke a so
called “Kurzarbeit” (short-term working schemes), whereby the state steps into
fund employee salaries, for up to 12 months. A reduction to “Kurzarbeit Null”
(reduction to zero) is also possible, thereby absolutely absolving employers from
their obligation to pay wages. As compensation, employees affected by such
measures are receiving “Kurzarbeitergeld” (short-time allowance) by the
government that amounts up to 87 % of their latest net income.
The Kurzarbeit and Kurzarbeitergeld are also available to sports clubs.
However, since the Kurzarbeitergeld cannot exceed EUR4,623 per month net of
tax, top earners like professional footballers, do not stand to benefit, as their loss
of income would be far greater than the amount, they would be able to recuperate
from the state.
In Italy, workers who are unemployed as a result of Covid-19 are entitled
to be compensated. Such compensation differs based on their status. In addition
to support from the central Government, the local authority in each region may
further compensate the affected population. It remains to be seen whether these
measures apply to football players.
In Spain, the government has enforced mechanisms to ensure that
employment contracts are respected during the crisis. In addition, the Spanish
government has also established that fixed term contracts must remain
uninterrupted while sporting activities are suspended. An expedited system for the
application and allowance of unemployment benefits has also been implemented.
3. Measures taken by sports associations
In England, the Premier League has advanced £125m to the EFL and National
League. The EFL has created a £50m relief fund (which in effect is an advanceEditoriale RDES 1/2020 13
on broadcasting payments), under which clubs will receive a grant and also be
eligible to apply for interest free loans.
Interestingly, the players’ union (the PFA) also has a hardship fund to
which players can apply to claim assistance.
In France, the league on 4 May 2020, adopted a resolution that would
enable the them to take out a state-guaranteed loan (of approx. EUR224.5 million)
to make up for the shortfall in broadcast rights monies caused by the termination
of the 2019-20 season.
In Germany, the football federation is negotiating with banks and hedge
funds for lines of credit for clubs that struggle financially. The Deutsche Fußball
Liga (“DFL”) has made available a reserve fund of EUR50 million for time
of crisis.
Particularly significant, and surely an example to be followed in other
member associations, Germany’s UEFA Champions League representatives,
namely Bayern Munich, Bayer Leverkusen, Borussia Dortmund and RB Leipzig
decided to forgo EUR20 million and donate it to clubs suffering from
financial difficulties.
Meanwhile the DFL and most of the TV broadcasters (in particular
“Sky”, “DAZN” and “ARD”) reached an agreement regarding the broadcasting
rights. In May, 1/3 of the outstanding broadcast amounts will be payable, while the
remaining 2/3 will be payable in instalments on each matchday. In return for their
willingness to pay 1/3 upfront, the TV broadcasters will benefit from a discount on
the overall rate. Notably, the DFL and broadcasters have agreed upon a mechanism
that would allow broadcasters to claim a refund of the 1/3 paid upfront, in the
event that the season is cancelled. Details of this agreement have not been released
in the public domain. According to media coverage, so far, no agreement could be
reached with “Eurosport/Discovery”.
In Italy, the Professional League of Serie A has proposed a common
approach to be adopted by all clubs, with respect to pay cuts. According to this
proposal, 4 months of players’ salary will be deducted in the event of an early
cancellation of the Serie A season and 2 months deductions in case of postponement
and eventual conclusion of the season.
In Spain, the football federation (the “RFEF”) has announced aid in the
form of a preferential state treasury advance of EUR4 million. Notably, such aid
seeks to support national level, non-professional clubs and futsal clubs with
professional football players in their teams. These grants are intended to support
clubs paying the salaries of players and coaches.
4. Negotiations at collective level
In all ‘Top Five’ leagues, football trade unions are striving to negotiate with clubs
on behalf of players where possible, but at the time of writing, no result has been
achieved.14 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
Moreover, the position remains the same across all five leagues – even
if an agreement with respect to salary cuts/arrangements is reached on a collective
level – the specific economic conditions set out in individual employment agreements
will still prevail. In other words, from a legal standpoint, no player can be obliged
to accept a salary cut even if all teammates have accepted it.
It is worth noting that in France there were negotiations with the players’
union (UNFP – national union of professional footballers) which resulted in
declarations of principle which do not prevail on each employment contract. Those
declarations concern reducing wages by 30% during the crisis and reimbursement
of wage cuts after the crisis.
In Italy, clubs are negotiating with their respective players. The results
will of course depend upon the agreement reached with each of the players.
Spain has seen some players voluntarily waive part of their remuneration,
as demonstrated by the players of Atlétic Club of Bilbao. Moreover, the Supreme
Sports Council (Consejo Superior de Deportes) announced an agreement with the
RFEF and La Liga, pursuant to which it would (a) invest/distribute part of the
media revenues generated by football to other Olympic and Paralympic sports
federations; and (b) create a EUR10 million fund to support vulnerable athletes.
The Spanish football players’ association (AFE) and other prominent associations
have also been invited to partake in this initiative.
5. Nature and scope of the clubs’ negotiations with Players
There is no common approach on the negotiations that Clubs and Players are
currently having with regard to salaries in the light of the disruptions caused by
the pandemics.
In England, given the varying degrees of financial health amongst clubs
in the English Football League (i.e. the Premier League, the Championship and
Leagues One and Two), a “one size fits all” solution is impossible to achieve.
While certain clubs continue to pay salaries and benefits in full, some
have opted for relief from the UK government’s ‘furlough’ scheme.
In addition, clubs have also asked their players to defer a fixed percentage
of their salary and/or benefits to a later date. This would allow them to deal with
cash flow shortages resulting from the suspension of professional football
championships.
Other clubs have requested players to take a temporary pay cut to salary
and benefits.
The size of the cut varies from club to club, but some are asking players
to cut their salary to what the club can recoup from the revenue authorities
(HMRC) under the furlough scheme (i.e. 80% of salary up to £2,500 per month).
By way of some recent, high profile examples, Arsenal players have
accepted a 12.5% pay cut subject to performance incentives, Aston Villa players
have deferred 25% of salaries for 4 months, whilst Chelsea continue to negotiate
a pay cut with their players, reported to be in the region of 10%.Editoriale RDES 1/2020 15
Premier League players across all clubs, through a collective initiative
called ‘Players Together’, have pledged a percentage of their earnings towards
the National Health Service (NHS).
With respect to varying existing contracts, players are being advised to
insist that any deferrals entered into are repaid in full before their club can access
the transfer market, when it opens. This “embargo” is putting some clubs off the
idea of cuts or deferrals for the sake of it.
Lower down the football pyramid (mainly in the Championship), many
players are refusing to accept pay cuts / significant wage deferrals. The EFL and
the PFA have agreed that deferrals can be discussed on a club by club basis, of up
to 25% for Leagues One and Two. But cuts have been ruled out by the players. In
the absence of agreements, clubs have mooted some radical/controversial solutions
- including league wide group administration or a £6k/week salary cap to try and
force players’ hands. Whether such measures will be pursued (if they are even
legal) remains to be seen. However, it does reveal the desperation of the situation.
It is predicted that dozens of clubs in the EFL could potentially face administration/
insolvency in the next few months if things continue in this manner.
In France, clubs currently apply the above-mentioned partial
unemployment benefits (see paragraph 2 above) and try to negotiate wage cuts
with their players.
In Germany, some clubs (e.g. Eintracht Frankfurt) have applied for
‘Kurzarbeit’, (see paragraph 2 above) for their non-playing employees. In many
cases, players agreed to temporary wage reductions, e.g. 20 % (Bayern Munich,
Eintracht Frankfurt) or 10-20 % (Borussia Dortmund), valid in most cases until
30 June 2020.
In Italy, all clubs have suspended the payment of the salaries due from
March, while negotiations at central level (League and trade union) are
pending.Juventus, Rome but also Cagliari and Sassuolo were able to reach an
agreement with the player for a reduction up to four months’salary in case the
Serie A will not be able to resume.
In Spain, most sports clubs with professional athletes are relying on the
so-called ‘ERTE’ system (the acronym of “expediente de regulación temporal
de empleo”) a measure expressly provided for in the Spanish Statute of Workers
for periods of crisis (objective causes) and for situations of force majeure. In
brief, through an ERTE, employers are able to request to either temporarily modify
employment contracts by e.g. reducing the working hours and salary (between
min. 10% max. 70%); or to temporarily suspend the employment contracts. In
cases of suspension of employment contracts, employees will receive an
unemployment allowance and possibly, if negotiated it with the employer,
other benefits.
Contracts affected by an ERTE will automatically be reactivated and
return to the initial terms once the state of alarm is lifted.
Currently, around 20 clubs in the two divisions of professional football in
Spain (including FC Barcelona, RCD Espanyol, Atletico de Madrid) have filed16 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
ERTEs reducing the working hours and salaries proportionally (but without
suspending contracts) based on force majeure, in order to confront the crisis
generated by the COVID-19 pandemic. Many other football clubs have proceeded
similarly in lower tier divisions.
6. Relevant legal and contractual principles
In England, the terms of an employment agreement can only be changed by
mutual agreement. An employer who unilaterally imposes a contractual change
(such as suspension of wages, wage cuts or deferrals) without the employee’s
express or implied consent will be in breach of contract; and the original terms of
the contract will remain in force.
In practice, if a club unilaterally imposes a pay cut/deferral, players would
have the option to terminate the contract. However, filing a claim for losses is a
time-consuming process, with the added unlikelihood surrounding the player’s ability
to join another club until football resumes. This could potentially leave players
without income for prolonged periods of time; meaning players are encouraged to
consider their financial situations before making such decisions.
The Premier League and EFL standard contracts (collectively negotiated
between the leagues and PFA) do not contain a force majeure clause. The common
law doctrine of frustration is rarely applied, particularly in an employment context.
Ordinarily, it is unlikely that employment contracts are frustrated because this
would require the position to be so fundamentally different to that envisaged that
performance becomes impossible. However, it is possible that employment contracts
are frustrated pursuant to a government instruction (or, indeed, other circumstances)
which prevents employers from providing work to its employees, and similarly, the
employees from performing the work. It remains to be seen whether this approach
to the doctrine of frustration will apply in the context of Covid-19. In any event,
frustration of employment contracts under English law will turn on the specific
facts and circumstances of each case. As far as we are aware, no club has
sought to rely on force majeure and/or the doctrine of frustration at the
time of writing.
In France, the employment contracts of professional footballers are
framed by law pursuant to the French Sports Code and the Labour Code. These
contracts are known as “specific fixed-term contracts”. They can only be brought
to an end for the following reasons, as established in law: (a) agreement of the
parties, (b) serious misconduct, (c) inaptitude of the employee, (d) signing of an
open-ended employment contract, (e) force majeure. The Covid-19 crisis may
constitute a case of force majeure but to cause a permanent breach of the
employment contract it is necessary that the impossibility (i.e. for the remaining
part of the contractual duration) is justified. However, the crisis will necessarily be
temporary, and force majeure can at best only lead to a “suspension”
(partial unemployment).Editoriale RDES 1/2020 17
In Germany, if a club decides to reduce the number of players it employs,
it may choose terminate contracts of “surplus” players under German Labour
Law. However, this provision is very difficult to invoke and is hardly realistic.
Clubs may also terminate and at the same time offer the continuation of
the contract with altered conditions (e.g. reduced wages). However, termination
with a view to wage reduction is possible only under extreme circumstances (it
must be the last measure for the employer to avoid insolvency).
Suspending employee salaries is not permissible under German law
without the consent of the employee.
With regard to salary cuts, while the season 2019/2020 is on hold, the
clubs do not have to pay premiums (e.g. for playing in a game [Einsatzprämie] or
for winning games [Siegprämie]).
In Italy, only Clubs, being the employer, can unilaterally terminate
employment contracts for force majeure. Nevertheless it is very likely that clubs
will attempt to reach agreements on salary cuts or on deferral of payments with
the players in order to avoid (a) the loss of valuable team assets; and (b) the loss
of (re-)sale value for players who would otherwise have been sold for significant
transfer fees, had their contracts not been unilaterally terminated.
In Spain, the legal and contractual principles which form the basis of
suspension, modification or termination of employment contracts are strictly based
on domestic employment law (the Statutes of Workers) rules. The hierarchy of
sources of labour law established by the Statutes of Workers places (a) the law
and regulations at the top of the pyramid; followed by (b) any collective bargaining
agreements; (c) the agreements reached between the parties; and (d) customary
law and professional practices at the bottom. However, it must be noted that a
basic tenant of employment law is the general prohibition for employees to waive
legally recognized rights.
7. Official reactions to the FIFA guidelines on Coronavirus
With the exception of Spain, none of the ‘top five’ European leagues have reacted
to the FIFA Guidelines on Covid-19, issued on 7 April 2020 (“FIFA Guidelines”).
The FIFA Guidelines recognize the pre-eminence of national law, collective
bargaining agreements and government decisions. The LFP and the FFF
(in France) are obliged to consider the decisions taken by the French
government first.
In England some of the FIFA guidelines cannot be enforced under
English law.
For example, FIFA has proposed that expiring contracts (due to expire
on 30 June 2020) are “extended until such time that the season actually does end.”
However, as per question 6 above, such provision cannot be unilaterally imposed
by clubs on players under English law. If a player wishes to become a free agent
on 30 June 2020 when his contract is set to expire, then he will be entitled to do so.
Whether it makes financial sense for him to do so is a different question.18 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
Unless a solution is agreed between pending free agents and clubs (e.g.
a short extension), it is estimated that there could be almost 1,000 free agents in
English football come 30 June 2020.
In Germany, the “DFB” (“Deutscher Fußballbund”) adapted its
“Spielordnung”, thus making an extension of the season beyond 30 June 2020
possible. In particular it declared that in such a case the players’ licences to play
for their current club will continue to be valid in July and so on. It also proclaimed
its willingness to apply for a shift of the “Wechselperiode I” (transfer period I,
more commonly referred to as the summer transfer window).
In Spain, the RFEF and La Liga have expressed their will to follow the
FIFA recommendations and their preference for competitions to be finished by
extending the current season, with contracts extended accordingly. For that purpose,
the RFEF plans to release (this week) an official position in line with the definition
of “season” in the FIFA RSTP.Editoriale RDES 1/2020 19
II. THE OTHER LEAGUES
(Argentina, Australia, Belgium, Brazil, Croatia, Chile, China, India, Japan,
Mexico, Paraguay, Portugal, Romania, Russia, South Africa, Switzerland,
The Netherlands, Turkey, Ukraine, and Uruguay)
Following a comparative analysis of the measures taken by the ‘Big 5’ European
leagues to combat Covid-19, it is opportune to provide a short overview of how
other countries propose to tackle the crisis from a footballing perspective.
A summary of measures taken in other jurisdictions has been
set out below:
1. Cancelled seasons: in addition to France (previously examined above) it
appears that the federations from Argentina and The Netherlands, have
put an end to their respective championships.
2. Government measures: certain national authorities have adopted special
temporary employment allowances/benefits, for all employees (thereby
including football players) up to certain amounts. In particular Australia,
Belgium, Brazil, The Netherlands, Portugal, Romania, South Africa,
Paraguay and Uruguay are a few countries to have announced employment
related benefits.
3. Federation measures: with respect to federations, it is interesting to note that
only a handful, namely Japan, The Netherlands and Portugal have created
and can rely on special funds to face emergencies such as the one at stake.
In particular, the J-League (Japan) has announced emergency funding in
the form of uncollateralized loans for its clubs.
4. Employment status of football players: in Croatia, Romania and India football
players are classified as being ‘self-employed’, or ‘service providers’ rather
than ‘employees’. As such they are unable to benefit from the measures in
place to protect employees/workers. Players in other jurisdictions that classify
footballers as ‘self-employed’ as opposed to being ‘employees’ are likely to
be similarly affected. However, it is to be noted that the Romanian Government
has decided to treat players as if they are employees for the purposes of
benefits, during the lockdown period.
5. Broadcasting revenue: A handful of national governing bodies (for e.g.
Argentina, Chile, Croatia) are still receiving and distributing revenue from
their respective TV broadcasting deals, despite the fact that the footballing
season has been suspended/cancelled.20 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
6. Player associations/collective bargaining: Football trade unions (they do not
exist in Mexico and in China), are engaged in collective bargaining/negotiations
with clubs to facilitate an agreement with respect to the payment, reduction
or a suspension of player salaries, with unions playing a relatively more active
role in Brazil and Uruguay. Unfortunately, no concrete result has been reached
thus far.
7. Player-club negotiations: Collective bargaining aside, clubs and players across
the world have been and continue to engage in negotiations, in their individual
capacities, with a handful of clubs having reached agreements in certain
jurisdictions.
The terms of such settlements vary on a case to case basis. However, the
quantum of payment deferred or reduced (as the case may be) is linked to
the income each player receives – the higher the income, the greater the
salary deferral/reduction, as applicable. This is a general principle followed
across the board.
For example, all 28 players of Japanese club, Hokkaido Consadole Sapporo
have agreed to return a portion of their salaries to the club in order to help the
management to face the crisis and the operational costs involved, while clubs
across all professional divisions in China have agreed to a salary cut until the
2020 season commences.
In Australia, 7 of the 11 clubs in the Hyundai A-League, who less financially
robust, have let go of their players and staff with no further payment. The
remaining 4, better resourced clubs continue to meet their obligations to players.
Staff at some Australian clubs appear to have taken paid leave in order to
cushion the financial impact upon their employers.
Key contractual and legal principles at play:
As a general remark, it should be noted that football clubs are still obliged to pay
their players in full, unless an agreement is reached with the players or where
force majeure is considered appropriate grounds to terminate the
employment contract.
a. Termination for force majeure
The position in The Netherlands is similar, where force majeure cannot be invoked
to unilaterally terminate an employment contract, although a salary reduction might
be possible. However, in other countries, such as Argentina and Croatia, force
majeure clauses may generally lead to the suspension or even termination of a
contract, with a provision for a reduced compensation (and in Argentina’s case,
subject to the government’s latest decree).Editoriale RDES 1/2020 21
In Romania, footballer contracts can be terminated for force majeure
on account of the fact that they are classified as civil contracts rather than
employment contracts under national law.
The legislation in Ukraine and Uruguay does not provide employers
with the ability to unilaterally terminate, even in force majeure circumstances,
while in Turkey a force majeure clause can trigger the termination of a contract.
Switzerland permits any party to terminate an employment relationship
with immediate effect, where there is ‘good cause’. While the pandemic might
well constitute a force majeure event, it is unlikely that such termination by clubs
would be upheld by the courts.
In Australia, India and Japan the applicability of force majeure contracts
depends upon the wording of the relevant contracts. Therefore, in the absence of
an applicable force majeure or similar provision permitting termination, both clubs
and football players are obliged to fulfil their contractual and economic obligations.
In common law jurisdictions, the doctrine of frustration may provide a
remedy to parties who wish to terminate a contract where circumstances outside
their control deems the contract impossible to perform.
Termination for force majeure in employment contracts: a snapshot
Permitted Not permitted If provided for in
contract
Argentina 9
(with reduced
redundancy package
and subject to
government decree)
Australia 9
Croatia 9
(with reduced
redundancy package)
India 9
Japan 9
The 9
Netherlands
Romania 9
(player contracts
specifically)
Switzerland 9
Turkey 9
Ukraine 9
Uruguay 922 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
b. Unilateral suspension or modification of player contracts
In Belgium, force majeure clauses may trigger the suspension but not termination
of an employment contract. Contracts in Brazil may be unilaterally suspended, if
provided for by a collective bargaining agreement.
In The Netherlands, modification of salary is only possible as a last
instance measure, and in the event that negotiations at both collective and individual
levels do not lead to a fruitful solution.
In Portugal, salary reductions are only permissible where (a) the employee
mutually consents to it; or (b) the working hours of employees are reduced so as
to reflect a proportionate reduction of salary.
In Chile as well as in South Africa, unilateral termination or modification
is not permissible. Contracts may only be terminated or modified if mutually agreed
to between the parties. Similarly, in Russia, employment contracts can only be
altered by the mutual consent of the parties, subject to certain exceptions prescribed
by law. Interestingly, the pandemic (thus far) cannot be considered to be one of
those exceptional circumstances.
In Mexico, contracts can theoretically be suspended in the event of a
government-declared ‘health contingency’. However, the government to date, has
avoided invoking this provision, thereby encouraging employers to pay full salaries
or mutually agree to any variations.
Unilateral suspension or modification: a snapshot
Permitted Permitted with Mutual consent
conditions only
Belgium 9
Brazil 9
(if provided for under a
CBA)
Chile 9
Mexico 9
(in the event of a ‘health
contingency’)
Portugal 9
(employee entitled to 75%
salary)
Russia 9
South Africa 9
The Netherlands 9
(last resort, in the event
that individual/collective
negotiations fail –
applicable to modification
of salary, not suspension.)Editoriale RDES 1/2020 23
In Romania, footballer contracts can be terminated for force majeure
on account of the fact that they are classified as civil contracts rather than
employment contracts under national law.
The legislation in Ukraine and Uruguay does not provide employers
with the ability to unilaterally terminate, even in force majeure circumstances,
while in Turkey a force majeure clause can trigger the termination of a contract.
Switzerland permits any party to terminate an employment relationship
with immediate effect, where there is ‘good cause’. While the pandemic might
well constitute a force majeure event, it is unlikely that such termination by clubs
would be upheld by the courts.
In Australia, India and Japan the applicability of force majeure contracts
depends upon the wording of the relevant contracts. Therefore, in the absence of
an applicable force majeure or similar provision permitting termination, both clubs
and football players are obliged to fulfil their contractual and economic obligations.
In common law jurisdictions, the doctrine of frustration may provide a
remedy to parties who wish to terminate a contract where circumstances outside
their control deems the contract impossible to perform.
Conclusions
While each member association will be faced with its unique set of challenges in
combating the impact of the Covid-19 pandemic, the above comparative analysis
seeks to highlight examples and best practices that could be replicated by other
member associations, subject of course to domestic law.
Indeed, the measures taken across the world have been varied.
For instance:
– All governments from the big 5 leagues have endorsed exceptional measures
to safeguard employment. Some have adopted unemployment benefit
schemes, while others have opened lines of credits for those affected,
including football players and non-playing football club staff;
– In every country, clubs are attempting to negotiate salary cuts from a minimum
of 10% (as in England and Spain) up to a maximum of 70% (for example,
in accordance with Spanish law).
– FIFA and UEFA have allocated financial resources to their national member
associations while a few of them namely the German and English
federations, have created special reserve funds for the clubs in need due to
the current crisis.
– Top clubs in Germany have similarly donated money to those clubs
facing bankruptcy.
– Players unions such as the PFA in England have dedicated hardship funds
to which players can apply to claim assistance.24 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
– Finally, some players have voluntarily waived part of their remuneration, as
is the case with those from Atlétic Club of Bilbao (Spain) while all
28 players of Hokkaido Consadole Sapporo (Japan) have returned a
portion of their salaries to the club to help the management with its
operational cost.
The current crisis has left clubs with glaring cash flow problems for the
next few months. However, it is equally important to look at the medium to long
term, in order to minimize the impact of Covid-19 on the football industry.
In an attempt to harmonize national measures from a mere employment
and contractual point of view, it is argued that all contracts should ideally be brought
in compliance with the FIFA Guidelines. However, the reality that such amendments
would always be subject to domestic laws cannot be ignored.
This, coupled with the fact that one cannot state with certainty when this
crisis will end, highlights the need for greater financial sustainability in football to
keep it afloat.
Thus, sports stakeholders should take this crisis as an opportunity to
make football more sustainable by, for instance:
– setting up specific “reserve” funds which cover future force majeure events.
Clubs of all categories would contribute a sum proportionate to their financial
health/ranking, with reserves being utilized at a time of crisis;
– revisiting amounts payable as solidarity mechanisms and training
compensation both at national and at international level, to potentially support
clubs at grassroots/lower levels;
– reforming the accounting rules and procedures of all Clubs, in order to make
the managers and CEOs really and effectively responsible for the budget at
their disposal.
The fact that football clubs – some of them among the world’s most
financially powerful entities – are now clamoring to negotiate wage cuts/deferrals
with their players, is indeed a paradox of the times we live in. Once the world and
its globally digitalized society emerge from this crisis, will football clubs and
institutions continue to spend large sums of money on star players and broadcast
deals, or will Covid-19 trigger a radical correction in the market, better equipping
the industry crises of the future?
What is certain however, is that this pandemic has changed the way
sport and – more specifically – football will approach legal and contractual
relationships. Both commercial (i.e. sponsorship or broadcasting) and
employment-related contracts will provide for more robust force majeure clauses
(or clauses with similar effect), while players will bargain (whether individually or
collectively) for measures to protect themselves legally and contractually going
forward. And while all stakeholders hope to never witness a catastrophe of this
magnitude again, it is certainly hoped that the industry will be better prepared for
the future.
Brussels – Mumbai, 8 May 2020Editoriale RDES 1/2020 25
****
Nel presente volume sono pubblicati i seguenti saggi:
ABUSI SESSUALI E BULLISMO NELLO SPORT
di Renato Grillo
L’Autore ha inteso svolgere uno studio, avente carattere di novità, sul complesso
fenomeno degli abusi sessuali e del bullismo nello sport, partendo dal quadro di
riferimento normativo delle varie condotte abusive esistente nell’ordinamento penale
italiano, per poi effettuare una visione panoramica del fenomeno sia all’estero che
in Italia e delle relative strategie di contrasto, corredato anche dai risultati di alcune
ricerche svolte in diversi paesi esteri ed in Italia da studiosi del settore.
Una parte significativa dello studio è stata riservata all’esame comparativo
statistico di dati ricavati dall’analisi di un consistente numero di sentenze emesse
dalla Corte di Cassazione Penale sulla materia degli abusi sessuali in ambito sportivo
nell’ultimo decennio e di altro gruppo di sentenze sullo stesso argomento emesse
dai giudici sportivi negli ultimi otto anni, per poi passare all’esame delle differenze
intercorrenti tra il procedimento penale ed il procedimento disciplinare sportivo ed
alcuni rilievi critici.
L’ultima parte del lavoro è dedicata, oltre che all’esame del fenomeno
del bullismo nello sport, anche alle iniziative in concreto esperite negli ultimi anni
dal massimo Organo dell’Accusa nell’ordinamento sportivo rappresentato dalla
Procura Generale dello Sport presso il CONI, nonché ad una sintesi di un’intervista
rilasciata dal Procuratore Generale dello Sport presso il CONI su alcuni temi nodali
relativi alla materia, ed, infine, alle riflessioni conclusive integrate da una serie di
proposte per il futuro.
LO SPORT MONDIALE DI FRONTE ALLA SFIDA DEL COVID-19. TRA
SOSPENSIONE DELLE COMPETIZIONI, STABILITÀ DEI CONTRATTI,
DEFINITIVA EMERSIONE DEGLI E-SPORTS, IN VISTA DI UNA
DIFFICILE RIPARTENZA
di Alessandro Coni
In questo 2020 il mondo sta affrontando un’emergenza globale a causa della
diffusione del virus Covid-19. L’OMS ha dichiarato lo “stato pandemico”
sollecitando i governi a prendere urgentemente provvedimenti per gestire il picco
di contagio. Tuttora si assiste ad un’estrema incertezza in merito alle misure da
adottare. In tale scenario, il mondo dello sport deve affrontare una crisi senza
precedenti. Il primo approccio da parte delle autorità sportive di tutto il mondo non
è stato uniforme. Tuttavia, al crescere della epidemia, le soluzioni sono divenute
convergenti. La scelta comune è stata quella di sospendere qualsiasi evento,26 Michele Colucci, Durante Rapacciuolo, Rustam Sethna considerando questa come la misura più adeguata anche in ragione della responsabilità che, a vario livello, federazioni, leghe e società sportive assumono nei confronti della salute pubblica e della sicurezza degli atleti. Tale decisione mette a rischio la stabilità dei contratti sportivi (ad es. i contratti di lavoro, le sponsorizzazioni, gli accordi sui diritti audiovisivi), nonché l’intero sistema. Molti considerano che la pandemia possa costituire una causa di forza maggiore idonea a sollevare le parti contraenti dalle loro obbligazioni. Tuttavia, l’applicazione di una siffatta categoria giuridica, sebbene riconosciuta a livello transnazionale, non appare applicabile in modo uniforme in tutte le giurisdizioni. Gli ordinamenti nazionali hanno una profonda comprensione di questo tema, sebbene risulti eterogeno l’approccio a seconda del sistema giuridico preso in considerazione. Anche gli organi di giustizia sportiva hanno maturato una consistente casistica al riguardo, sviluppando un test rigido circa la sua applicazione. Rispetto alla condizione di crisi generalizzata, vi sono anche settori che prosperano. La mancanza di eventi dal vivo hanno condotto sia gli organizzatori di eventi sia i fan a rivolgersi verso le competizioni di eSports, che continuano a svolgersi, rimanendo per loro possibile giocare anche da remoto. Nonostante il successo degli eventi sportivi virtuali, permangono alcune perplessità sul rapporto tra sport tradizionali ed eSports. RESPONSABILITÀ CIVILE DEGLI INSEGNANTI PER I DANNI CAGIONATI DALL’ALLIEVO AD UN ALTRO ALLIEVO O A TERZE PERSONE NELL’ESERCIZIO DELL’ATTIVITÀ SPORTIVA SVOLTA IN AMBITO SCOLASTICO di Francesca Mite Il contributo delinea i fondamenti della responsabilità civile degli insegnanti e dei genitori per i danni cagionati dall’allievo ad un altro allievo o a terze persone nell’esercizio dell’attività sportiva svolta in ambito scolastico. A fronte della crescente casistica in tema di infortuni sportivi in ambito scolastico, l’A. fa una ricognizione delle più significative pronunce di legittimità e di merito intervenute in materia. Il problema della prova liberatoria, attraverso la quale insegnanti e genitori possono sottrarsi alla responsabilità civile ex art. 2048 c.c., si rivela di complessa risoluzione quando la responsabilità per il fatto dell’allievo venga imputata a titolo di “culpa in vigilando e in educando”. L’orientamento della giurisprudenza di legittimità formatosi in materia tende ad escludere l’antigiuridicità della condotta posta in essere dall’allievo ove il danno sia ricondotto al “rischio sportivo” consentito. Infine, l’A. si sofferma sulla riforma del sistema della responsabilità civile del personale scolastico statale intervenuta al fine di agevolare la posizione di questa categoria, prima dell’intervento riformatore assoggettata ad un trattamento eccessivamente rigoroso, e di favorire la soddisfazione delle pretese risarcitorie del danneggiato prevedendo la sostituzione del MIUR agli insegnanti statali nel giudizio di risarcimento dei danni.
Editoriale RDES 1/2020 27
UN NUOVO RUOLO PER I TIFOSI (RIFLESSIONNI INTORNO
ALL’ARTICOLO 4 DELLA LEGGE N. 86/2019)
di Piero Sandulli
Prendendo le mosse dall’analisi dell’articolo 4 della legge n. 86 del 2019 l’autore
esamina i poteri e le funzioni che sono stati assegnati agli organismi dei tifosi, ma
rilevando la inconsistenza di essi, dopo aver esaminato la normativa 231/2001,
recentemente estesa all’organizzazione sportiva, e la possibilità, per le organizzazioni
dei tifosi, di fruire dell’azione di classe (art. 840 bis e seguenti c.p.c.) formula
ipotesi per coinvolgerli fattivamente nella gestione dell’evento sportivo.
LE COOPERATIVE SPORTIVE: UN MODELLO VIRTUOSO PER IL
DILETTANTISMO
di Stefano Gianfaldoni
Negli anni si è assistito ad un’esplosione del fenomeno sportivo, soprattutto
dilettantistico, in ragione di politiche comunitarie volte alla promozione del benessere
e della salute dell’individuo e dello sport in generale oltre che a politiche nazionali
espansive dell’attività attraverso modelli di semplificazione (art. 90 l. 298/2002). Il
contributo prende, dunque, spunto dall’analisi specifica delle principali caratteristiche
degli enti sportivi dilettantistici sulla base della normativa vigente e mira a
consolidare l’orientamento che ne evidenzia le incompatibilità con i tipi di società
per azioni e società a responsabilità limitata. Ciò in quanto, più di altri, gli enti
sportivi dilettantistici sono caratterizzati per lo scopo non profit e il rispetto dei
principi di democrazia e uguaglianza interna e presentano, dunque, molteplici affinità
soprattutto con il modello di società cooperativa. Un modello, quest’ultimo, che
potrebbe anche essere adottato in specifici casi, con particolari vantaggi, per svolgere
attività sportive nel terzo settore e perseguire a pieno lo scopo di solidarietà e
utilità sociale.
COMMISSIONE v. TRIBUNALE DELL’UE: 0 A 1 – LA COMMISSIONE
“LASCIA IN PANCHINA” IL CRITERIO DELL’OPERATORE
ECONOMICO IN UN’ECONOMIA DI MERCATO
di Ilaria Sticchi
Mentre, almeno in apparenza, il mondo dello sport sembra essersi fermato in ragione
dell’emergenza sanitaria globale Covid-19, per la Corte di Giustizia e il Tribunale
“the show must go on”.
Così, il 12 marzo 2020 il Tribunale pronuncia due sentenze (T-732/16 e
T-901/16) con le quali annulla la decisione della Commissione relativamente ad un
aiuto di Stato concesso ad una società sotto forma di accordo volto a compensare28 Michele Colucci, Durante Rapacciuolo, Rustam Sethna
la mancanza di un trasferimento immobiliare inizialmente concordato con una
parte terza.
Niente di nuovo sotto il sole si potrebbe dire, se non fosse che stiamo
parlando di due club calcistici spagnoli, e che solo un anno fa il Tribunale aveva
annullato, in altre due cause (T-865/162 e T-791/163), già commentate su questa
Rivista, la decisione della Commissione sugli aiuti di Stato concessi al Barcellona,
al Real Madrid, all’Atletico Osasuna e all’Atletic Club sotto forma di privilegio
fiscale relativo all’imposta sulle società.
Eppure, la lezione da trarre da queste cause dovrebbe essere oramai
chiara per la Commissione: maggior rigore nell’applicazione delle regole processuali
in materia di aiuti di Stato, soprattutto con riferimento al test dell’operatore
economico in un’economia di mercato.
E ciò anche alla luce dell’improvvisa emergenza legata all’epidemia da
Covid-19 dei primi mesi del 2020, che ha richiesto un pronto intervento a livello
europeo, concretizzatosi nell’adozione di norme maggiormente flessibili in materia
di aiuti di Stato,4 al fine di consentire agli Stati membri di adottare misure di sostegno
al tessuto economico in deroga alla disciplina ordinaria in materia.
Questo si è tradotto – e si sta traducendo – in una serie di decisioni della
DG Concorrenza prese in temi strettissimi, e le cui valutazioni potrebbero rivelarsi,
ad un esame più approfondito, non così accurate come richiesto dai giudici
del Lussemburgo.
La riflessione ulteriore che si può quindi trarre dal combinato disposto
del contesto attuale in materia di aiuti di Stato e dalla tendenza della giurisprudenza
europea a pretendere un maggior rigore di indagine da parte della Commissione
nelle sue richieste di recupero, è che tanto i beneficiari della misura di aiuto quanto
la Commissione dovranno essere vigili nell’assicurare che sia legittimo e compatibile
con il mercato interno, onde evitare di aggiungere ulteriori danni all’attuale crisi.
LO STATUTO GIURIDICO DELLO SPORTIVO DILETTANTE NELLA
SENTENZA TOPFIT eV E BIFFI DELLA CORTE DI GIUSTIZIA
di Giacomo Gattinara
Con la sentenza del 13 giugno 2019 in causa C-22/18, Topfit eV e Biffi, la Corte di
giustizia dell’Unione europea sancisce la contrarietà agli artt. 21 (libera circolazione
dei cittadini dell’Unione), 18 (divieto di discriminazioni in base alla cittadinanza) e
165 TFUE (competenza di sostegno dell’Unione in materia, tra l’altro, di sport) di
una regola adottata dalla federazione tedesca di atletica leggera, in virtù della
____________________
2
Sentenza del 26 febbraio 2019, Fútbol Club Barcelona/Commissione, causa T-865/16,
ECLI:EU:T:2019:113,impugnazione: causa dinanzi alla Corte C-362/19 P.
3
Sentenza del 22 maggio 2019, Real Madrid Club de Fútbol/Commissione, Causa T-791/16,
ECLI:EU:T:2019:346.
4
Comunicazione della Commissione “Temporary framework for State aid measures to support the
economy in the current COVID-19 outbreak - COM 2020/C 91 I/01”.Editoriale RDES 1/2020 29 quale la partecipazione di uno sportivo dilettante – che, cittadino italiano, si era stabilito in Germania in cui risiedeva da più di dieci anni – ad una competizione sportiva nazionale nella categoria senior era subordinata al possesso della cittadinanza tedesca. Secondo la Corte, sono incompatibili con il diritto dell’Unione in quanto contrarie al divieto di discriminazioni in base alla cittadinanza quelle regole, anche adottate dalle associazioni sportive, che impediscono ad un cittadino dell’Unione, che abbia esercitato il proprio diritto alla libera circolazione, di potersi integrare nella società dello Stato membro che lo ospita. La sentenza costituisce il primo precedente nella giurisprudenza della Corte di giustizia con cui si riconosce che lo sport ricade nel diritto dell’Unione non solo quando è oggetto di un’attività economica, ma anche quando costituisce un aspetto in grado di condizionare l’effettivo esercizio della libera circolazione da parte dei cittadini dell’Unione. Sancendo dunque il diritto di uno sportivo dilettante, cittadino dell’Unione residente in un altro Stato membro, di partecipare ai campionati nazionali di tale Stato, la Corte definisce per la prima volta il valore sociale dello sport nel diritto dell’Unione europea.
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